ESEA Rules Are Released
by Lynn Olsen, Education Week, 8-7-02
Department of Education released proposed regulations last week
fleshing out critical sections of Title I, from accountability to
teacher qualifications, under the "No Child Left Behind" Act of 2001.
draft rules generally adhere closely to the language in the law,
federal officials tried to reassure states and districts, both in that
document and in a July 24 letter, that they still have "significant
flexibility" in meeting the measure's accountability provisions. State
leaders have been asking for some wiggle room so they do not have to
totally revamp existing accountability systems or identify large
numbers of schools as failing to progress under the law.
"The purpose of the
statute, for both assessments and accountability, is to build on
high-quality! account ability systems that states already have in
place, not to require every state to start from scratch," Secretary of
Education Rod Paige wrote in the letter last month to state and local
"We are aware that there
are rigorous models that states have already developed that may
achieve the same fundamental principles of the statute, although
through different approaches," the department adds in the explanatory
language that precedes the draft regulations. "We specifically invite
states that have been using different models to comment on the
statutory provisions that might affect their use, and how these
requirements could be incorporated into their current systems."
The conciliatory tone of
both the draft rules and Secretary Paige's letter, which addresses the
"adequate yearly progress" requirements in the law, was greeted with
relief by a number of state schools chiefs.
"I'm really encouraged by
the tone of the secretary's letter, as well as the content," said
Michael Ward, North Carolina's superintendent of public instruction.
"There are things that we've discussed with the secretary and the
department over the past few months to which, I believe, he was very
The Education Department
will accept comments on the proposed regulations for 30 days after
they are published in the Federal Register, which was expected
to take place this week, and may make revisions before publishing the
final rules. The department also plans to provide additional,
non-regulatory guidance on Title I, the $10.35 billion program that
provides the biggest chunk of federal funding to schools with
significant proportions of disadvantaged children.
Not 'One Size Fits All'
The 245-page draft
regulations, which the department posted on its Web site Aug. 1, cover
major portions of Title I of the revised Elementary and Secondary
Education Act, which were not addressed in the rules on standards and
assessments published July 6. In addition to clarifying the
accountability provisions in the law, the proposed rules address
dollar allocations; school-wide projects; migrant education; programs
for children who are neglected, delinquent, or at risk of dropping out
of school; and teacher and paraprofessional qualifications.
In his July 24 letter, Mr.
Paige sought to clarify the "adequate yearly progress" provisions in
the law, which spell out the annual goals schools must meet to avoid
being labeled as needing improvement and subject to a range of
increasingly serious consequences.
Many state officials had
expressed concern that the criteria for adequate yearly progress
detailed in the law were too rigid and required them to identify more
schools as needing improvement than they could possibly help. ("Frustration
Grows as States Await 'Adequate Yearly Progress' Advice," July 10,
But in his letter, Mr.
Paige noted, "The law does not prescribe how states must officially
designate schools that do not meet AYP requirements."
Rather than labeling all
schools alike, the letter suggested, states might want to devise a
number of categories to differentiate among them. For example, they
might want separate categories for schools that fail to meet their AYP
targets for all groups of students, and those that fail to meet them
for only one or two subgroups.
Similarly, the letter said
states were free to direct their resources and tailor their
interventions based on the individual needs of each school. "It does
not necessitate a 'one size fits all' response without regard to how
well a school is doing overall," Mr. Paige wrote.
North Carolina's Mr. Ward
said the letter had addressed "our interest in be! ing able to
distinguish in reporting between schools that are missing AYP by a
little and schools that are missing AYP by a mile."
"It's also, I think, a
really pragmatic issue from the standpoint of use of resources," the
state chief said. "You want to focus resources where triage is needed
Early Submissions Sought
States are required to
submit their definitions of adequate yearly progress to the Education
Department by the beginning of 2003. Those applying for State Flex, a
demonstration program that gives states additional flexibility under
the law, will have to submit their definitions for approval this fall.
All definitions will be peer-reviewed, as the No Child Left Behind
statute requires, by a panel that includes representatives of parents,
teachers, and state and local education agencies.
In his letter, however,
Secretary Paige encouraged states to submit their plans for review
this fall even if they were not applying for State Flex, and he
indicated that those front-runners could serve as models to test
different approaches to AYP.
"Approaches to meeting the
statutory requirements that are at least as rigorous as the
requirements of the statute and the regulations will be considered,"
according to Mr. Paige, provided that a state shows its system meets a
number of criteria spelled out in the letter.
"I'm very pleased with the
letter," said David P. Driscoll, the commissioner of education in
Massachusetts. "I believe there are places where there's some
flexibility, and that's all we're looking for."
Both Mr. Driscoll and Mr.
Ward expressed interest in having their states be among those that
submit their definitions to the federal department sooner rather than
later. "That's really where the rubber is going to hit the road," Mr.
Ward said. "It will be through that negotiated process where we get
the clearest sense of how workable we can make this for all the
In the introduction to the
draft regulations, meanwhile, the Education Department highlights
several areas in which states have some flexibility in how they
address the requirements for adequate yearly progress.
For example, the rules
specify that states must set separate, annual goals for both reading
and math performance and then raise those goals by steady increments
so that all students perform at the "proficient" level on state tests
by 2013-14. Even if a state changes its testing system or its
definition of adequate progress as many states will have to do to
comply with the law's requirement for annual testing in grades 3-8it
cannot extend the deadline for having all students reach proficiency
on state tests.
But the draft rules permit
states to set different "starting points" for each "grade span" of
students. That would allow states to set the initial bar lower for age
groups with the worst current performance, such as high schoolers.
For a school to make
adequate progress, both its total student population and specific
groups of students the economically disadvantaged, major racial and
ethnic groups, students with disabilities, and those with limited
English proficiency must meet separate, annual targets in reading and
mathematics. Scores in one area cannot compensate for weaker
performance in another.
In addition, a school must
test at least 95 percent of the students in each group. A state's
definition of AYP also must include graduation rates for high schools
and an additional indicator for elementary and middle schools.
The draft rules define the
high school graduation rate as "the percentage of students who
graduate from high school with a regular diploma (not including a GED)
in the standard number o! f years. " But the Education Department
proposes permitting states to submit an alternative definition for the
secretary's approval, if it would more accurately measure the
States also would have
options in determining how to hold accountable schools that do not
include any of the grades tested in the state assessment system,
chiefly K-2 schools, as well as those whose purpose is to serve
students for less than a full academic year. States do not need to
administer a formal assessment to students in those schools.
States also could choose
the minimum number of students needed in each subgroup "to produce
statistically reliable results." If the number of students in a
subgroup was too small, states would not need to identify a school as
failing to make adequate progress even if fewer than 95 percent of
students in that subgroup took the test or didn't meet the targets.
While the draft rules
provide states some maneuverability, they also underscore the
department's intent to hold all children to high standards.
In particular, the rules
specify that only students with the most significant disabilities
should be taking "alternate assessments," rather than the state's
regular tests, and very few of those students should be held to other
than a grade-level standard for purposes of judging adequate progress.
The draft rules also require reporting on the number of students with
disabilities who take alternative assessments.
Based on "current
prevalence rates of students with the most significant cognitive
disabilities," the draft rules state that no more than 0.5 percent of
all students tested in a state or district can be held to other than a
grade-level standard for accountability purposes. If more than 0.5
percent of disabled students took alternative assessments, they would
have to be held to the state's grade-level standards.
Jeff Simmering, the
legislative director of the Council of the Great City Schools, which
represents! the nation's large urban districts, said that while his
organization was "pretty pleased with what's come out of the
department," the draft rules on alternative assessments "may be an
area of some concern."
The issue came up during
the negotiated rulemaking on the ESEA provisions on standards and
assessments. "Since we were dealing, and quite frankly struggling,
with the alternate assessments and the off-grade testing during
negotiated rulemaking," Mr. Simmering said, "I believe that would have
been a more appropriate forum to raise that."
American Association of School
"Resources and Best Practices for Implementing ESEA 2001".
Includes a section on
"Adequate Yearly Progress: Assessment, Accountability, Report Cards,
Choice, District Improvement Plans."
States Left Behind: The Challenges and Opportunities of ESEA 2001,"
February 2002, from the Education
Commission of the States, summarizes the requirements of the new
education law, provides information on timelines and funding levels,
and gauges the states' readiness.
Department of Education
posts its ESEA
regulatory guidance to date.